Chiquita International Ltd.
v.
M/V Bolero Reefer

1994 U.S. Dist. LEXIS 5820 (S.D.N.Y. 1994)

What's Going On?

Defendant's motion to compel discovery of Plaintiff's expert in a maritime action where Plaintiff sued Defendants for loss and damage to cargo of bananas.

Who's Who?

Plaintiffs     :

Chiquita International Ltd. – shipper of bananas.
[Chiquita Banana Co. – shipper of bananas.]

Defendant :

M/V Bolero Reefer – vessel aboard which Plaintiffs' cargo was transported.
International Reefer Services, S.A. – carrier engaged by Plaintiff[s] to ship cargo.

Facts:

Plaintiff Chiquita International Ltd. hired Defendant International Reefer Services to transport 154,660 boxes of bananas from Ecuador to Germany aboard Defendant M/V Bolero Reefer. Defendant International Reefer only loaded 111,660 boxes due to alleged malfunctions of Defendant M/V Bolero Reefer's loading equipment. The cargo remaining in Ecuador was disposed of, and the cargo that reached Germany was allegedly in poor condition. Joseph Winer, a marine surveyor, examined Defendant M/V Bolero Reefer at Plaintiff's request shortly after the vessel's arrival in Germany. Plaintiff then brought a maritime action against Defendants for cargo loss and damage. Defendant International Reefer seeks to depose Mr. Winer and compel discovery of documents he prepared while inspecting the vessel. Plaintiff contests discovery on the ground that Mr. Winer is a non-testifying expert, who is not subject to discovery under FRCP 26(b)(4)(B). Defendant International Reefer argues that Mr. Winer is a factual witness, not an expert. Defendant additionally argues that, notwithstanding his status, exceptional circumstances exist that warrant discovery because Mr. Winer is the only surveyor who observed the vessel shortly after it docked.

Issue:

Does the fact that one party's non-testifying expert was the only expert to inspect certain evidence constitute an “exceptional circumstance” under which the opposing party may compel discovery of that expert, where the expert is protected under FRCP 26(b)(4)(B)?

Decision:

No. Mr. Winer qualifies as an expert based on the fact that he used his technical background as a marine engineer to assess the condition of the vessel, Defendant M/V Bolero Reefer. The fact that Mr. Winer examined the vessel personally instead of offering an opinion based on the observations of others does not alter his status as an expert. Whether the information held by Mr. Winer is fact or opinion is not relevant to the question of whether FRCP 26(b)(4)(B) applies. What is relevant is that Mr. Winer was hired to make an evaluation in connection with expected litigation. Rule 26(b)(4)(B) covers Mr. Winer because he was hired to evaluate the vessel in connection with expected litigation. The “facts known or opinions held” by non-testifying experts are generally immune from discovery under Rule 26(b)(4)(B). Discovery of an expert protected under Rule 26(b)(4)(B) may nevertheless be permitted in exceptional circumstances. Defendant International Reefer contends that such circumstances exist in this case because Mr. Winer is the only surveyor who observed the vessel shortly after it docked. This contention must fail because Defendant International Reefer was not precluded from having its own expert examine the vessel by any forces beyond its control. Defendant International Reefer's failure to engage its own marine surveyor should not be rewarded by permitting Defendant International Reefer to depose Plaintiff's expert; however, documents containing discoverable information conveyed to Mr. Winer by others shall be produced because information does not become exempt from discovery merely because it is conveyed to a non-testifying expert.

Basic Rule:

The failure of a party to engage its own expert in a timely manner shall not be rewarded by permitting discovery of the opposing party's expert.

Terms:

Maritime :

Referring to the traditional body of rules relating to navigation, commerce, and business transacted at sea, and actions arising under those rules, over which the federal courts have exclusive jurisdiction.

Note:

The M/V Bolero Reefer is named as a defendant in this action because it is being sued in rem. The vessel is commonly named as a defendant in maritime actions.

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